IN THE HIGH COURT OF JUDICATURE AT PATNA

C.R. No.2143 of 2009

BHAGIRATH PRASAD SIGH @ BACHCHA BABU, Son of Late

Sri Narayan Singh, Resident of village Chhitnama, P.S. Maner, District Patna

…… Defendant ….. Petitioner

Versus

1. RAM NARAYAN RAI @ RAM NARAYAN SINGH

2. Ram Nath Rai

Both sons of late Siya Sharan Rai

Resident of village Daudpur, P.S., Shahpur, District

Patna

……. Plaintiffs …. Opposite Parties

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For the Petitioner : M/s Shiv Nandan Roy, Sr. Advocate

and Dronacharya, Advocate

For the opposite Parties : M/s Ganesh Chandra Thakur and

Ajay Kumar Singh, Advocates

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24.06.2010

This civil revision is directed against the order

dated 5.11.2009 passed by Munsif, Danapur, in Title

Suit No. 46 of 2008, whereby the application filed by the

defendant – petitioner under Order VII Rule 11 of the

Code of Civil Procedure had been rejected.

Heard learned counsel for the defendant –

petitioner and the plaintiffs – opposite party nos. 1 and

2.

This revision is being disposed of at this stage

with the consent of the parties.

Plaintiffs – opposite parties did not raise any

issue with regard to maintainability of this civil revision.

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However, in view of the law laid down by the Division

Bench in Civil Revision No. 1067 of 2009 and other

referred matters, it is held that that this civil revision is

maintainable.

Now, I proceed to consider this revision on its

merit.

The defendant – petitioner had filed Title Suit

No. 125 of 1969 for declaration of title and

confirmation of possession and alternatively for

recovery of possession with respect to open space of

land and for other ancillary reliefs. The suit was

dismissed by the learned Munsif-II, Patna, by judgment

dated 31.3.1979 against which the defendant –

petitioner (plaintiff in the aforesaid suit) preferred Title

Appeal No. 78 of 1979, which was allowed by learned

Additional District Judge, XIII, Patna by judgment dated

23.12.1987. Against the said judgment and decree the

plaintiffs – opposite parties (defendants in the Title Suit

No. 125 of 1969) preferred Second Appeal No. 78 of

1988. In the Second Appeal an order dated 11.1.2000

was passed by this Court on the application of the decree

holders-opposite parties, who claimed that the judgment

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debtors taking advantage of order of ad-interim

injunctions were making certain constructions over the

suit property upon which it was ordered that though

there was no reason to restrain the judgment debtors

from making new construction but if construction is

made over the suit land the same shall be subject to

result of the Second Appeal and the judgment debtors

shall not be entitled to claim any equity. Ultimately the

aforesaid Second Appeal was finally dismissed and the

plaintiffs – opposite parties (judgment debtors in the

earlier suit) moved to the Hon’ble Apex Court but there

also they lost and finally execution proceeding was

initiated. During the execution proceeding a Pleader

Commissioner was appointed, who submitted a report

with specific finding that the constructions made on the

land in question were new and, thus, in view of the

earlier order passed in Second Appeal No. 78 of 1988

and upon consideration of the report of the Pleader

Commissioner, the Executing Court passed an order

dated 20.11.2006 directing the building in question to be

demolished and possession be given to the plaintiffs –

decree holders, who are defendant – petitioner herein.

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The aforesaid order was challenged by the

defendants – judgment debtors of the earlier suit who

are the plaintiffs- opposite parties herein by filing C.R.

No. 61 of 2007. That ci